House Communications Subcommittee Refers Accessibility Bill To Full Committee

The House Communications
Subcommittee on Wednesday approved a bill that would put additional disability
access requirements on broadcasters, cable operators, Web video streamers and
consumer electronics companies. But that approval came in part because both
Republicans and Democrats were assured more changes would be made to the bill.

It is a work in
progress, said subcommittee Chairman Rick Boucher (D-Va.), who added that it
will reflect more changes when the bill is brought up in full committee in two
weeks. Energy & Commerce Committee Chairman Henry Waxman (D-Calif.) wants
to get House approval of the bill by July 26, the 20th anniversary of the
Americans with Disabilities Act.

HR 3101, the 21st
Century Communications and Video Accessibility Act, would update communications
accessibility provisions in the 1996 Communications Act as well as apply them
to access to broadband.

During the Wednesday
markup at which the bill was favorably referred to the full committee on a
voice vote, various legislators, Republicans and Democrats, talked about issues
they still had with the legislation, which was itself a new draft of the bill,
reflecting changes from a version considered earlier this month in a hearing at
which some sparks flew.

Among the bill's key
points are: 1) requiring equipment for small-screen video devices to convey
closed captioning and emergency information, 2) requiring user interfaces for
viewing video on such devices be accessible, including an accessibility button
on remote controls, 3) reinstating FCC video description requirements for TV
programming (they were vacated by a D.C. court in 2002), applying closed
captioning requirements to the Internet, and requiring that video programming
convey emergency information to the visually impaired.

Among the changes to the
bill since it was first introduced is one that would give the FCC more
flexibility and power to determine how broadcast and cable operators would meet
a new congressional mandate that disability access to telecommunications
requirements be updated to reflect the rise of broadband and other
technologies.

In the previous version
of the bill, the FCC would have to require accessibility unless it would result
in an undue burden on equipment manufactures. That standard has been changed to
"unless it is not achievable," with achievable defined as "with
reasonable effort or expense."

The FCC would have the
job of determining whether that standard had been met, based on the nature and
cost, the impact on the manufacturer and distributor and the deployment of
new technologies, the manufacturer's financial resources, and "the type of
operations of the manufacturer or provider." Among the changes to the bill
that concerned some Republicans was allowing the FCC to expand the video
description requirement beyond the 50 hours per quarter the FCC had required
before those rules were struck down. Some Democrats, on the other hand, thought
the two years the FCC was given to implement new video description requirements
was too long.

A couple of Republicans
argued against giving the FCC what they saw as open-ended authority over
the accessibility updates. Rep. John Shimkus (R-Ill.) said the FCC needed more
direction than broad guidelines, and Rep. Marsha Blackburn (R-Tenn.) alluded to
the issue of broadband authority--which centers on what powers Congress did or
did not give the FCC. She said that any authority should be explicit, with
plenty of congressional oversight, adding that Congress should not just
delegate items to the rulemaking process.

Ranking member Cliff
Stearns (R-Fla.) said he was concerned that the bill not stifle innovative
technologies like the iPhone. The Consumer Electronics Association, which has
major issues with the bill, has argued that under such access provisions like
mandatory buttons, the (sleek and buttonless) iPhone might never have made
it to market.

He is also concerned that the
mandates apply to every feature of every device, rather than, say, making all
those features available on only some of a product line.

Other issues with
the bill include whether the "operator financial resources" test for
achievability is based on total resources, or just those applied to the device
or service, and whether the FCC should have to report back to Congress before
deciding how many hours of video-described programming broadcast and cable
outlets have to provide.

An issue that concerned
several Democrats, including Waxman and the bill's chief sponsor, Ed
Markey (D-Mass.), was a change to the bill that applied video description
mandates in only the top 25 markets.

Markey, who thought the
two-year phase-in was unnecessarily lengthy, said it did not make sense
that the mandates would exclude millions of the blind because they lived
in New Orleans rather than Orlando or Nashville rather than New York.

Rep. Mike Doyle (D-Pa.)
pointed to another issue with the top 25 markets cut-off. He represents
Pittsburgh, market number 23, but only 40,000 people separate the DMA from the
26th largest market. If Nielsen moved one county in next year's map, or there
was population growth elsewhere combined with decline in Pittsburgh, his constituents
could lose the guarantee of video description. He said he was sure broadcasters
would continue to deliver the descriptions if that happened, but the FCC would
not have the power to enforce it.

Doyle also said he was
concerned that if the accessibility standard was only designed for digital
delivery, some small cable operators would be forced to upgrade.

Boucher said he would be
happy to work with Doyle and everyone else to get their issues resolved by markup
in the full committee.

The National Cable & Telecommunications Association agrees with Boucher that the bill is, and should be, a
work in progress. It still has some issues with the bill.

"We appreciate the
changes that have been made to the bill and look forward to working with all
members of the committee as this legislation continues to move,"
said NCTA spokesman Brian Dietz. "We believe that further
improvements are needed if we are to be successful in developing targeted
legislation that focuses on reasonable, attainable goals in improving the
accessibility of communications services and equipment for persons with
disabilities."